Newman v. Rhebem Theatres Corp.

224 A.D. 845

Opinion

Judgment reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. Plaintiff was not entitled to a foreclosure judgment as the lien was clearly one against the contractor both under the complaint and from the language of the hen. It was not filed as against the owner upon the theory that the latter was hable for materials furnished after the alleged new promise. There must be a new trial in order to determine what sum, if any, the plaintiff may be entitled to, based upon such materials as were furnished after the alleged new promise, and which may not include materials theretofore furnished unless the promise was in writing. (Voska, Foelsch & Sidlo, Inc., v. Ruland, 172 App. Div. 616.) The finding of fact of the making of the new promise is, in our opinion, against the weight of the evidence. Kapper, Hagarty, Seeger and Seudder, JJ., concur; Lazansky, P. J., concurs in result.